FRANCIS MATHEW Vs. STATE OF KERALA

JUDGEMENT

(1.) Accused in C.C.No. 838/99 on the file of Judicial First Class Magistrate-1, Aluva is the revision petitioner. Second respondent was the complainant. Petitioner was convicted and sentenced to simple imprisonment for six months and compensation of Rs. 80,000/- and in default simple imprisonment for six months for the offence under Section 138 of N.I.Act. Petitioner challenged conviction and sentence before Additional Sessions Judge, North Paravur in Crl. A.No. 590/03. Learned Additional Sessions Judge after analysing and re-appraising the evidence confirmed conviction and sentence and dismissed appeal. Petitioner has preferred this revision from jail. Advocate Krishna Kumar was appointed as State Brief.

(2.) Case of second respondent was that petitioner promising to secure a job for Rasheed, brother of PW.1, in Premier Tyres Ltd., Kalamassery obtained Rs. 80,000/-and when he failed to arrange job second respondent demanded back the amount and then petitioner issued Ext.P2 cheque towards repayment of the amount and when Ext.P2 was presented for encashment, under Exts.P3 and P4 it was dishonoured for want of sufficient funds. Under Ext.P5 second respondent demanded the amount covered by cheque, which was not accepted by petitioner and was returned back under Ext.P6. Petitioner did not pay the amount and thereby committed offence under Section 138 of N.I.Act. Petitioner pleaded not guilty. PW. 1 was examined and Exts.P1 to P6 were marked. Petitioner did not adduce any evidence. Learned Magistrate on the evidence found that Ext.P2 cheque was issued towards discharge of existing liability and it was dishonoured for want of sufficient funds and second respondent had complied with all statutory formalities provided under the Act and petitioner committed offence under Section 138 of N.I.Act. He was accordingly convicted and sentenced. Learned Sessions Judge analysed and reappraised the evidence and confirmed the conviction and sentence.

(3.) Advocate Mr. Krishna Kumar vehemently argued that Ext.P2 cheque was not issued towards discharge of any legally enforceable debt and according to second respondent it was issued towards payment of amount obtained by petitioner for arranging a job to brother of second respondent which is opposed to public policy and therefore it is not a legally enforceable debt and on that ground petitioner cannot be convicted under Section 138 of N.I. Act. Learned counsel relied on the decision reported in Central Inland Water Transport Corporation Ltd. and Anr. v. Brojo Nath Ganguly and Anr., AIR 1986 SC 1571, A.R.P.L. Palaniappa Chettiar v. P.L.A.R. Arunasalam Chettiar, 1962 AC 294 and Associated Cement Companies Ltd. v. State of Rajasthan and Anr., AIR 1981 Raj. 133 and vehemently argued that if second respondent cannot be permitted to realise the amount which was paid by first respondent for arranging as it is opposed to public policy and if permitted it would be permitting acceptance of bribe. Contending that it is to be found that Ext.P2 was not issued towards discharge of any legally enforceable debt learned counsel would submit that the conviction is unsustainable.